Potato cyst case concluded

Press, 11 December 1982, Page 25

Potato cyst case concluded

Wellington reporter Actions claiming more than $300,000 in damages from the Ministry of Agriculture by three Malvern farmers.' arising from the potato cyst nematode outbreak in'l97s. ended in the’ High Court in Wellington yesterday. Mr Justice Savage reserved judgment. The hearing has lasted for seven days and technological and expert evidence on the nature of the cyst and procedures for coping with it was given. Newlands Park. Ltd. Murray Baxter. Stuart Baxter, and Peter Herbert William Stafford took actions against Malcolm Leitch Cameron, the Director-General of Agriculture and Fisheries, and Alan’Tutton Johns, a former Director-General.

The applicants were seed potato growers in North Canterbury at the time of the 1975 'outbreak and were among five Malvern farms to be declared infested. Under a declaration, potatoes must not be grown until 15 years after the last positive sample test.

The applicants are asking

the High Court to quash the 1975 declarations of infestation. and also to award damages because the declarations were improperly made under the regulations.

Mr Stafford is a farmer on 87ha at West Melton. He seeks general damages of $157,600. calculated on the basis of $81,600 for past losses. $56,000 for future losses, and $26,000 in damages for stress and ill-health, plus costs. The Baxters are a father and son farming 170 ha at Darfield on a property owned by Newlands Park. Ltd. Together, they claim damages of $6839. plus $45,126 for past losses and $22,000 for future losses, and costs. Murray Baxter, the father, also claims $50,000 general damages in compensation for stress and illhealth. while the company seeks $25,000 in general damages for the devaluation of the land.

For the applicants, Mr J. G. Fogarty said that the Ministry had shown a lamentable standard of care. “Ministry staff took a short cut and did not see it through.’' he

said. The procedure followed for testing potato cyst nematode was new and had not been adopted in any other country. The applicants had been the victims of expediency because it had been a highly convenient procedure that could be done quickly.

Far more care had been taken over the Marshland table potato infestation than the Malvern seed potato infestation. Mr Fogarty said, yet the consequences of an infestation were far more serious for seed potato growers than table potato growers.

The expertise had been available in Auckland to test the Malvern infestation, as had been used for the Marshland infestation, but the Ministry had not sought it. He said that the issue was not whether, on the balance of probability, the cyst was present. The issue was whether the cyst was present or not. The regulations required that "the cyst is found," and not that “the cyst is, on the balance of probabilities. found." An absolute standard to “find” the cyst had been placed on the Ministry, but it

had not met this standard. The Ministry had relied on the cyst shape alone to establish its presence. Mr Fogarty said. Yet this did not. in the event, provide an irrefutable presence. If the samples from the properties of the applicants had been tested further, there would not now be any doubt that the cyst was present.

This failure by the Ministry provided the basis for reasonable dispute by informed persons as to whether the cyst was present. and so did not meet the absolute standard of the regulations that "the cyst is found,” he said. The procedures used to test the samples meant that the samples could have been contaminated. This meant that even if the samples did contain the cyst, that was not proof that the cyst was “found” on the properties of the applicants. The Ministry had not acted “prudently" in its failure to further test the samples, to ensure the procedures were adequate, and in not retesting to confirm the infestation for several years. However, the Crown (Mr

K. D. Stone) contended that it had been foreseen by the regulations that to deciare a property to be infested would harm it’s owners.

To succeed in a claim for damages, the applicants had to show they had suffered special harm over and above that caused by the declaration of infestations.

The applicants had tried to prove that negligent procedures had been adopted and. because of that, the cyst was not present on their properties. Mr Stone said.

However, the connection was tenuous, and a series of expert witnesses had testified that the procedures were not inadequate to confirm an outbreak.

Experts called by the applicants had tended .to confuse the basic character of cyst sampling on farms, to establish an outbreak with the more sophisticated work needed to distinguish between cyst species in research and laboratory work.

It was nonsensical to claim that because second or third tests did not provide a positive sample, then the cysts were never there at the time of the first sample. Mr Stone said.